The unruly behaviour of an air passenger may constitute an ‘extraordinary circumstance’ capable of exempting the airline from its obligation to pay compensation for the cancellation or the long delay of a flight, the Court of Justice of the European Union (CJEU) has recently affirmed. This is so, provided that the airline adopts the necessary reasonable measures to counteract the circumstance in question.
EU law makes provision for the rights of air passengers should they be denied boarding of a flight against their will or should their flight be delayed or cancelled. In the case of delays of two hours or more, passengers must be offered the necessary care as provided for by the law. When the delay is that of five hours or longer, passengers may opt for reimbursement of the full cost of the ticket together with, when relevant, a return flight to the first point of departure. Jurisprudence has also established that, when due to a delay, passengers reach their final destination three hours or more after the scheduled arrival time, they may also seek flat-rate compensation from the airline, unless such delay is caused by extraordinary circumstances.
Should a flight be cancelled, the passengers concerned must be offered care, reimbursement of the cost of the ticket within seven days or a return flight to the first point of departure or rerouting to their final destination as well as a flat-rate compensation depending on the length of the flight. The latter compensation is, however, only applicable should the passenger not be informed of the cancellation sufficiently in advance. It is also not applicable if the airline can prove that the cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The facts of this case were briefly as follows. A dispute arose between a passenger and the air carrier Transportes Aéreos Portugueses (TAP) concerning the latter’s refusal to compensate the passenger, whose connecting flight was subject to a long delay in arriving at its final destination.
The air carrier refused to pay the said compensation on the ground that the delay to the relevant flight was the result of the unruly behaviour of a passenger on a previous flight operated using the same aircraft, which led to the rerouting of the aircraft. It claimed that such a circumstance was to be considered as an ‘extraordinary’ within the meaning of EU law and hence, the airline was exonerated from paying compensation. The national court seized of the case filed a preliminary reference before the CJEU requesting guidance as to whether the facts under examination would qualify as an ‘extraordinary circumstance’ in terms of EU law.
The CJEU affirmed that an air carrier is not obliged to compensate passengers if it can prove that the flight cancellation or delay of three hours or more is caused by ‘extraordinary circumstances’ which could not have been avoided, even if all reasonable measures had been taken.
This is so, provided that the airline in question would have adopted measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid the situation resulting in the cancellation or long delay of the flight in question. The Court clarified that this does not, however, mean that the airline is expected to make “intolerable sacrifices” in view of the airline’s capabilities.
The Court proceeded to observe that events may be classified as ‘extraordinary circumstances’ if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside the carrier’s actual control. These conditions are cumulative. Such circumstances may occur in the case of security risks. The Court observed that the unruly behaviour of a passenger which led to the rerouting of the aircraft jeopardises the safety of the flight in question. Such behaviour is not inherent in the normal exercise of the air carrier’s activity and is not, as a rule, under the control of the air carrier.
The behaviour of a passenger and the reaction to the crew’s requests are not foreseeable and on board an aircraft, both the pilot and the crew have only limited means of controlling such behaviour, the Court explained.
However, such behaviour will not be classified as an ‘extraordinary circumstance’, if the carrier contributed to the behaviour or was in a position to anticipate it and take the necessary measures at a time when it was able to do so without significant consequences for the operation of the flight concerned. This would be the case where, for example, the air carrier has taken on board a passenger already displaying behavioural problems before or even during boarding.
In cases, such as the one under examination, where the ‘extraordinary circumstance’ arose in a previous flight to the one in relation to which compensation is being claimed, the airline must also be able to prove that there is a direct causal link between the occurrence of the circumstance which effected the previous flight and the delay or cancellation of a subsequent flight. The said airline must also prove that it deployed all the resources at its disposal to ensure reasonable, satisfactory and timely rerouting.
The Court went on to emphasise that the mere offer by the air carrier to re-route the passenger concerned to the final destination on the next flight operated by that carrier, even if this means that the passenger would arrive at the destination on the day following the day initially scheduled for his arrival, cannot be considered as having deployed all the resources at its disposal. The airline must seek to establish whether there are alternative direct or indirect flights which may be operated by other air carriers, which would allow the passenger to arrive at a scheduled time that is not as late as the next flight of the air carrier concerned, provided that the implementation of such rerouting does not constitute an intolerable sacrifice for that air carrier in view of its capabilities.
Current times have proven how important it is for both airlines and passengers to have legal certainty as to what their rights and obligations are concerned. Judgements such as this shed light on certain grey areas which may arise in practice.
Mariosa Vella Cardona, M’Jur, LL.D., is a freelance legal consultant